06-003496EF Department Of Environmental Protection vs. Keith A. Hethington Status: Closed DOAH Final Order on Friday, April 20, 2007.

Summary: Petitioner in a notice of violation proved that Respondent had not built the required stormwater system; allowed open burning, and on one day, did not have the required personnel present. Due to mitigating circumstances the penalty should be reduced.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 3496EF

)

KEITH A. HETHINGTON, )

)

Respondent. )

)

FINAL ORDER

This ca use came on for formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in Pensacola , Florida, on January 9 and 10, 2007 . The

appearance s were as follows:

APPEARANCES

For Petitioner: Karen Bishop, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399 - 3000

For Respondent: Jesse W. Rigby, Esqu ire

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

125 West Romana, Suite 800

Post Office Box 13010

Pensacola, Florida 32591 - 3010

STATEMENT OF THE ISSUE S

The issues to be resolved in this proce eding concern

whether the Respondent should have a monetary administrative

penalt y imposed for violations of the statutes and rules cited

herein, and whether the Respondent should be required to take

corrective actions concerning those alleged violations a nd pay

related investigative costs .

PRELIMINARY STATEMENT

A Notice of Violation and Orders for Corrective Action were

issued by the Department of Environmental Protection

(Department) on June 12, 2006. The Notice of Violation (NOV)

and Orders for Correct ive Action raise allegations that Keith A.

Hethington (Respondent), violated the Department's rules

regarding operation of land clearing debris facilities.

Specifically, the Respondent was charged with failure to

construct a stormwater management system; that the Respondent

allowed open burning of solid waste at his land clearing debris

disposal Facility ; and operated the Facility without a trained

"spotter" on duty at the working face of the disposal Facility

while waste was being disposed of. Thus , the Respondent is

charged with violation , respectively , of Florida Administrative

Code Rules 62 - 701.803(4); 62 - 701.300(3); and 62 - 701.803(8) .

The Respondent challenged the NOV and order for corrective

action by filing a Petition on August 6, 2006, wherein he denied

that the stormwater management system at the Facility was not

constructed in accordance with stormwater management site plans

submitted with the general permit notification. He denied that

open burning had occurred at the Facility , and denied that the

Department incurred investigative related expenses of no less

than $1,000.00.

The cause was ultimately transferred to the Division of

Administrative Hearings and the undersigned Administrative Law

Judge. It was noticed for hearing for the dates of Ja nuary 9

and 10, 2007, in Pensacola, Florida.

Shortly prior to hearing , on January 4, 2007, two Motions

in Limine were filed by the Department asking that evidence

related to the Respondent's financial inability to comply with

the NOV be excluded, and that a witness of the Respondent from

Escambia County government be also excluded from testifying.

After receiving the Response to the Motions, the undersigned

denied both Motions on January 9, 2007, ruling that the witness

from Escambia County might have tes timony relevant to the scope

or type of corrective action ordered, and also ruling that the

Respondent's ability to pay might be possibly a mitigating

factor in consideration of any penalty that might be assessed.

The parties also filed a Joint Pre - hearin g Stipulation on

January 5, 2007. The Respondent admitted to the violation in

Count III of the Department's NOV concerning failure to have a

trained spotter on duty on the date alleged.

Thereafter the cause came on for hearing as noticed on

January 9, 2007. The Petitioner presented the testimony of

Michael Stephen, Marshall Seymore, and Clifford Street.

Clifford Street was accepted as an expert witness in the area of

the Department's stormwater rules. Twenty - six of the

Petitioner's exhibits were of fered and admitted into evidence.

The Respondent presented the testimony of Keith Hethington and

Peter Aluotto. Four of the Respondent's exhibits were admitted

into evidence.

Upon conclusion of the hearing , the parties elected to have

the proceedings tr anscribed and requested a 14 - day period for

submission of proposed final orders after the transcript was

filed. The Proposed Final Orders were timely submitted and have

been considered in the rendition of this Final Order.

FINDINGS OF FACT

1. The Depart ment is an agency of the State of Florida

charged with the duty of protecting Florida's air and resources

and administering and enforcing Chapters 373 and 403, Florida

Statutes, and the rules promulgated thereunder appearing in

Florida Administrative Code , Title 62 .

2. The Respondent own ed and operate d a permitted land

clearing debris disposal Facility known as the Ambush Land

Clearing Debris Disposal Facility (Facility) located in Escambia

County, south of Bankhead Road and approximately one - quarter

mile west of the intersection of Bankhead Road and Blue Angel

Parkway.

3. The Respondent operates this Facility under Permit No.

0193476 - 001 - SO. The permit is a general permit issued by the

Department subject to the requirements of Florida Administrative

Co de Rule 62 - 701.803. The Respondent filed his Notification 0f

Intent to use a general permit for a land clearing debris

Facility with the Department on January 8, 2002. That general

permit notification included a design for a stormwater

management system. The Respondent operated the Facility under

that general permit until its expiration on February 6, 2007.

4 . Stormwater is required to be controlled in accordance

with part four of Chapter 373, Florida Statutes , and Florida

Administrative Code Chapter 6 2 - 25 . See Fla. Admin. Code R. 62 -

701.803(4).

5 . The stormwater management system described in the

General Permit Notification included the use of a retention pond

on adjacent property. The Facility is a three - acre Facility

begun as a borrow pit approxi mately 50 feet deep. Upon issuance

of the General Permit , land clearing debris was brought to the

pit for disposal.

6 . The Department inspected the Facility on 22 occasions,

between August 23, 2005 and January 4, 2006.

7 . Thereafter on June 15, 2006, the Department issued its

N OV alleging that the Respondent had violated the permit and

Department rules. It was specifically alleged that the

Respondent failed to construct the st or mwater management system

as required by Florida Administrative Code Rule 6 2 - 701.803(4);

that he allowed open burning of solid waste in violation of

Florida Administrative Code Rule 62 - 701.300(3); and that he

operated the Facility without a trained spotter on duty at the

working face , while waste was being disposed of , in violati on of

Florida Administrative Code Rule 62 - 701.803(8).

8 . On August 7, 2006, the Respondent filed a Petition

challenging the N OV . The Respondent denied that the stormwater

management system at the Facility was not constructed in

accordance with the storm water management plans submitted with

the General Permit Notification. The Petitioner also denied the

occurrence of open burning at the Facility and that the

Department had incurred expenses of at least $1,000.00.

9 . Page 4 of the Engineers report attac hed to the General

Permit Notification states:

Stormwater will be controlled via a

retention swale and retention po n d

surrounding the site. The swales and

retention pond are sized to accommodate one -

half inch volume across the site. A shallow

swale on th e West boundary will be

constructed to allow conveyance of

stormwater to a retention pond an the South

end of the property. The detail of the

retention pond and conveyance swale is shown

on Figure 4.

Figure 4, attached to the General Permit Notification, includes

design drawings for a retention pond measuring 25 feet wide by

500 feet long, designed to hold three feet of water. Figure 4

also includes design drawings for swales measuring five feet

wide at the bottom and 17 feet wide at the top , with a thre e - to -

one ratio slope. The Respondent planned to use his neighbor ' s

property for construction of the retention pond. The retention

pond was a part of the design submitted with the General Permit

notification, depicted in F igure F our, but was never

constru cted , and the General Permit Notification with

attachments does not clearly indicate that the retention pond

would be on adjoining property.

10 . Mike Stephen is an employee of the Department and has

been for 13 years . He is an inspector of solid waste

f acilities . He inspected the site eight times over a one year

period. He established that the site was an initially a b o rrow

pit and over time was filled with land clearing debris and

chipped hurricane debris from Hurricane Ivan. As a result the

f acility , instead of remaining a pit , evolved into a raised

grade of about 25 feet above the natural land surface . Thus,

the pit has become a knoll. The placement of dirt on the

f acility , in response to firefighting needs , resulted in the

elevation of the f acili ty above the surrounding land surface.

This caused stormwater to leave the property rather than to run

or peculate through the waste deposited in the original pit.

11 . Mr. Stephen reviewed the General Permit Notification

submitted by the Respondent to t he Department. It describes a

stormwater system design consisting of a swale around the

northeast and west sides of the property. The swale was

designed to be 17 feet wide and 3 feet deep, and to bring the

stormwater around the perimeter of the f acility to the south end

of the property. The conditions of the General Permit

Notification, provided for in Florida Administrative Code Rule

62 - 701.803, require that the stormwater be controlled during the

entire life of the f acility .

12 . The Respondent was pr esent during some of

Mr. Stephen's inspections. When the R espondent was present he

was told by Mr. Stephen about the violations noted. Some of the

inspection reports were given to the Respondent, but most of

their communication was verbal.

13 . On the d ates alleged in Count I , no stormwater

management system had been constructed at the f acility. At one

time the Respondent began constructing a stormwater ditch along

the western side of the property, but never finished it. As of

September 29, 2005, upon inspection in response to a neighbor's

complaint, it was revealed that sediment and stormwater had run

off the f acility onto a government easement directly west of the

f acility , as shown by photographs in evidence as Petitioner's

Exhibits 9 through 10. Th e neighbor had complained that

stormwater was running onto her property from the f acility.

14 . Marshall Seymore, has been an employee for the

Department for four years, and is the supervisor of the solid

waste program for the Department's northwest distr ict. He

established that Florida Administrative Code Rule 62 - 701.804(3)

requires a copy of a stormwater permit, or documentation that

none is required , to be submitted to the Department before waste

can be accepted at such a f acility.

15 . Cliff Street, is a 17 - year employee of the Department.

He is the E ngineering S upervisor for the S ubmerged L ands and

E nvironmental R esources P rogram. He testified as an expert

witness on the stormwater violation issued at the Facility. He

established that any modifica tion occurring in a Facility after

February 1, 1982, requires stormwater treatment. A modification

could be an increase in stormwater discharge, an increase in

pollutant loading, or changes in points of discharge on a

particular site. A landfill would be a modification , if it

increases the run - off or increases the pollution from the s ite.

A hole in the ground, or p it, that is created for deposition of

demolition or land clearing debris, requires treatment when the

landfill debris accumulates and exceeds the natural grade

surrounding the f acility , resulting in more run - off .

16 . The inspection reports and photographs of the site,

establish , according to Mr. Street's testimony, that in his

professional opinion the sediment that traveled across the

governme nt property adjacent to the site resulted from water

that traveled across the site. It was thus established, along

with the photographs in evidence , taken on September 29, 2005

(Petitioner's Exhibits 9 and 10) that the run - off is occurring

from the wester n slope or southwestern corner of the site.

17 . On September 29, 2005, as established by Mr. Street,

the site was well above natural grade and run - off was coming

from the site. Under those conditions , treatment of the run - off

would be required in accord ance with Florida Administrative Code

Rule Chapter 62 - 25. Therefore the stormwater management system

described in the General Permit Notification documents should

have been constructed before September 29, 2005, the point where

the debris and associated d irt cover exceeded natural grade.

18 . Mr. Street also established that no stormwater

management system existed on the site on October 16, 200 5 , based

upon his review of a boundary and topographic survey bearing

that date. Stormwater cannot be retained o n the site in its

current condition and the contours on the survey show that

stormwater is able to run off from the entire southwestern

quadrant of the property .

Open Burning

19 . Mike Stephen inspected the Respondent's f acility on

the dates alleged in Co u n t II in the Notice . He observed flames

or smoke at those various times , c ommencing on August 23, 2005,

through January 4, 2006. A photograph from September 6, 2005,

and that inspection , shows smoke arising from the site , but also

shows that dirt had be en placed in an effort to extin g uish the

fire. Later photographs in evidence for the Petitioner in

September through December 2005, show smoke coming from the area

of the south slope of the f acility.

20 . Mr. Stephen acknowledged that the Respondent , at

Mr. Stephen's behest , would occasionally put dirt over areas in

an effort to extin g uish the fire, but usually had to be prompted

to do so by Mr. Stephen.

21 . Mr. Seymour of the Department also conducted six of

the inspections referenced in the Notice. H e observed smoke

from the northwest corner of the f acility upon his November 2,

2005, inspection. He established that those photographs and his

observances show that open burning was occurring on that

occasion. He testified that either visual flames or s moke is

used as a direct indicator of a fire, but that it is common for

vapors to emit from these types of facilities and that it could

be difficult to establish , just from observed vapor, if there

actually is a fire. One means of determining whether wast e is

burning is to measure the internal temperature. Mr. Seymour

stated that stud i es show that when internal temperatures in a

waste facility rise above 160 degrees Fahrenheit, that a

chemical reaction or burning is likely tak ing place , although

that is n ot a certainty. The Department has a policy or

guideline , with regard to the corrective action proposed in this

case , to the effect that the fire is deemed extin g uished when

all sub - surface temperatures are below 160 degrees Fahrenheit.

This avoid s the n ecessity of digging up the waste to determine ,

visually , if a fire is occurring . Inserting a probe into the

ground to measure temperature is the most economical , simplest

way to determine sub - surface temperatures.

22 . Mr. Seymour established that the De partment , by policy

and by rule, has a position that a fire should be extin g uished

as quickly as possible to lessen the public health risk and the

risk that a fire can enlarge as to become dangerous in landfills

and other waste disposal facilities . Based upon Mr. Seymour's

experience with enforcement of the rules, nothing in rule

Florida Administrative Code Rule 62 - 256.700 allows land clearing

debris to be burned at a f acility such as the Respondent's.

23 . The Respondent testified that Escambia County sh ut

down his site because of the occurrence of a fire. He maintains

that he did not ignite the fire and was not aware that anyone

had set a fire. He believes that spontaneous combustion could

have caused the fire. When he became aware of the fire, he

bro ught equipment to the site and covered the fire with dirt.

During the time the pit was on fire the Respondent took between

two and three hundred loads of dirt to the site to cover the

fire to make efforts to extinguish it. In fact, the dirt cover

placed on the site resulted in the elevation of the site being

raised to such an extent as to require an operable stormwater

management system.

Count III

24 . The Department alleges in Count III that on

December 19, 2005, no trained spotter was on duty on the wo rking

face of the waste disposal f acility , while trees, tree trunks,

and tree limbs were disposed of. The Respondent concedes this

and admits to this allegation.

Investigative Costs

25 . The Department has contended that it has incurred

costs of not less than $1,000.00 while investigating this

matter. In this regard it adduced evidence that the cost of

Mr. Stephen's work is $21.50 per hour and he spent approximately

55 hours making inspections. Mr. Seymor e 's salary is $26.60 per

hour . He spent approxim ately 30 hours inspecting the f acility.

This results in a total apparent cost of $1,182.50 for Mr.

Stephen's work and $798.00 for Mr. Seymour's work.

26 . Although the undersigned has ruled that the

Respondent's financial condition is irrelevant to the l egal

issues presented by the statutes and rules governing this case ,

some testimony regarding the Respondent's financial condition

was allowed on a possibility that it might have relevance on the

question of any mitigation of penalties. The Respondent beg an

c arrying debris to the site shortly after he received the

permit , operat ing the site in conjunction with his land clearing

business . It accepted waste until the middle of 2005. He did

not charge a fee for the disposal because he was taking the

waste f rom his own Ambush Land Clearing and Hauling Corporation

without charging it any fees. He also accepted between 250,000

and 280,000 cubic yards of debris from FEMA following the

destruction cased by Hurricane Ivan. He charged that federal

agency $1.00 pe r cubic yard for disposal of that waste. The

Respondent dissolved Ambush Land Clearing and Hauling,

Incorporated at the end of 2005, retaining none of that

company's assets. He now works for an employer and earns

approximately $800.00 gross per week, bef ore taxes , and also

owns a Harley Davidson motorcycle.

Escambia County Closure Permit

27 . The Respondent has applied for a closure permit to

Escambia County. He offered evidence apparently in an effort to

show that it would be impossible to comply wit h the Department's

N O V as well as the Escambia County ordinance.

28 . Mr. Peter Aluotto, is the Director of Planning and

Zoning for Escambia County. He testified regarding the County

Development Review Committee (DRC) and Escambia County Ordinance

2006 - 24. Section 82 - 227(5) of the Escambia County Ordinance

prohibits volume reduction at land clearing debris facilities.

"Volume Reduction" includes chipping, shredding, or burning of

debris. Section 82.236 of the Escambia County Ordinance

determines that variances may be granted if the board of

adjustment determines that granting such variances will not

result in the maintenance or creation of a nuisance. Although

he has applied for a closure permit , there is no evidence

presented that the Respondent app lied for a variance from this

ordinance , as for instance to place himself in a position where

he could perform grinding of debris material in order to

generate revenue.

29 . Both the DRC and the Escambia County Waste Department

have to collaborate on issu ance of a closure permit.

Mr. Alleuto does not know what action might be taken on the

closure permit application. In any event, his testimony is

irrelevant to the corrective action sought by the Department

because the Department is not requiring any grin ding , or

otherwise reduction in volume of debris material. The fact that

the Respondent would like to grind debris material in order to

generate revenue is irrelevant to actions sought by the N OV and

the Department's position in this case.

30 . In s ummar y it has been established that open burning

occurred at the site and that the Respondent "allowed" it to

occur. It has not been established by preponderant evidence

that the Respondent actually ignited the materials in question.

Moreover , it has been est ablished by preponderant evidence that

the Respondent made extensive efforts to extinguish the fire.

It is also true that he was somewhat slow to do so , and did so

only upon prompting by the Department's personnel . In any

event, however slowly he complie d , he did cooperate with the

Department in making an effort in ex tinguishing the fire. There

is no preponderant evidence to show that the fire is still

burning and that it was not extinguished. Additionally, it has

been established that the stormwater ma nagement system has not

been , constructed as represented to the Department in the Notice

regarding the General Permit. In fairness to the Respondent,

however, the Stormwater Management System was not required to be

in place under the rules until the site generated stormwater

migrating off the site . That did not occur until the elevation

was raised above the surrounding land surface elevation. That

in turn, occurred because of the Respondent's efforts to

extin g uish the fire by hauling numerous truck loads of dirt and

placing them on the site , such that it ultimately attained a

raised elevation .

C ONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.569 and 1 20.57(1), Fla. Stat. (200 6 ).

32 . The issues in this proceeding implicate two different

statutory chapters. The stormwater related issues relate to

part IV of Chapter 373, Florida Statutes (2006), and the issues

regarding solid waste arise under Chapter 4 03, Florida Statutes

(2006) .

33 . Section 373.430(1)(b), Florida Statutes (2006) ,

provides that " it is a violation of this part, and it shall be

prohibited for any person . . . to violate or fail to comply

with any rule, regula tion, order, or permit adopte d or issued by

a water management district, the department, or local government

pursuant to their lawful authority under this part."

34 . Section 403.161(1)(b), Florida Statutes (2006) , states

that "it is a violation of this chapter, and it shall be

prohib ited for any person . . . to violate or fail to comply

with any rule, regulation, order, permit, or certification

adopted or issued by the department pursuant to its lawful

authority."

35 . The Petitioner has the burden of proving by

preponderant evidence that the Respondent is responsible for the

violations charged. § 403.12 1 (2)(d), Fla. Stat. (2006). In

accordance with Section 403.121(2)(d), Florida Statutes (2006),

" the administrative law judge shall issue a final order on all

matters, including the im position of an administrative penalty."

36 . The Department has alleged in Count I that Florida

Administrative Code Rule 62 - 701.803(4) has been violated because

Respondent failed to construct a st or mwater management system in

accordance with the General Pe rmit Notification he gave the

Department when he was in the process of obtaining his General

Permit. Florida Administrative Code Rule 62 - 701.803(4) states

"stormwater shall be controlled in accordance with Chapter 373,

Florida Statutes and the rules promu lgated thereunder. A copy

of any permit for stormwater control issued by the Department or

documentation that no such permit is required, shall be

submitted to the Department before the facility receives waste

for disposal."

37 . Florida Administrative Code Rule 62 - 25.040(1) req uires

that any person intending to construct a new stormwater

discharge facility apply to the Department for a construction

permit prior to commencement of construction of such a facility .

Construction is defined in Florida Admin istrative Code Rule 62 -

25.020(4) as "any on - site activity which will result in the

creation of a new stormwater discharge facility, including the

building, assembling, expansion, modification or alteration of

the existing contours of the property, the erec tion of buildings

or other structures, or any part thereof, or land clearing."

38 . Florida Administrative Code Rule 62 - 25.040(3) provides

that modifications to an existing stormwater management system

that will increase the discharge of the stormwater dis charge

facility beyond its previously designed and constructed

capacity, or increase pollution loading, or change points of

discharge, are considered new stormwater discharge facilities.

39 . The Department has established by preponderant

evidence that a stormwater management system was required when

the debris and dirt cover associated with the facility and

associated with extinguishing the fire , exceeded natural grade.

The Respondent did not have a stormwater management system on

the dates alleged in Co u n t I.

40 . Section 403.121(3), Florida Statutes (2006), set forth

the administrative penalties that must be imposed absent

mitigating circumstances, for specified violations. Subsection

(3)(e) of that provision provides "the Department shall assess a

pen alty of $2,000.00 for failure to construct or maintain a

required stormwater management system." The Respondent failed

to construct the required stormwater management system depicted

in his Notice for his General Permit and which became required

once the site assumed a configuration and contour which resulted

in stormwater migrating off the site. Because he failed to

construct the system and administrative penalty of $2,000.00

must be imposed.

41 . Section 403.121(10), Florida Statutes (2006), provides

the following guidelines on the issue of mitigation:

(10) The administrative law judge may

receive evidence in mitigation. The

penalties identified in subsection (3),

subsection (4), and subsection (5) may be

reduced up to 50 percent by the

administrativ e law judge for mitigating

circumstances, including good faith efforts

to comply prior to or after discovery of the

violations by the department. Upon an

affirmative finding that the violation was

caused by circumstances beyond the

reasonable control of t he respondent and

could not have been prevented by

respondent's due diligence, the

administrative law judge may further reduce

the penalty. (Emphasis supplied).

42 . Here, the Respondent did not make any significant good

faith effort to construct the sto rmwater management system

described in his general permit notification after repeated

warnings and promptings by the Department that it was required

and after having knowledge that stormwater was leaving his

property. The strormwater management system at the f acility

still had not been constructed as of the date of the hearing.

43 . There is no evidence to show that the violation as to

stormwater management was caused by circumstances beyond the

Respondent's control or could not have been prevented by

ex ercise of due diligence by the Respondent. The Respondent's

lack of money is not a mitigating circumstance numerated in

Section 403.121(10), Florida Statutes (2006). Compare

Department of Environmental Protections v. Holmes Dirt Service,

Inc. , 864 So. 2d 507 (Fla. 1st DCA 2004) (Benton, J.,

dissenting) (where competent substantial evidence showed that

violations were beyond the landowner's control, order mitigating

a fine was sustained. In his dissent, Judge Benton noted that

inadequate financial resourc es to pay a fine is not a mitigating

circumstance contemplated by the statute.) Holmes at 508.

44 . The Department contends in Count II of its Notice of

Violation that the Respondent violated Florida Administrative

Code Rule 62 - 701.300(3) by allowing open burning at the

f acility. Open burning is defined in Florida Administrative

Code Rule 62 - 701.200(88) as "the burning of any material under

such conditions that the products of combustion are emitted

directly into the atmosphere." The rule does not requir e that

the burning be intentional, rather it is a violation of the rule

to allow the burning , without regard whether to the Respondent

started the fire.

45 . Florida Administrative Code Rule 62 - 701.300(3) states

that "open burning of solid waste is prohib ited except in

accordance with Chapter 62 - 256 Florida Administrative Code.

Controlled burning of solid waste is prohibited except in a

permitted incinerator, or in a facility in which the burning of

solid waste is authorized by a site certification order issued

under Chapter 403, Part II, Florida Statutes."

46 . There has been no evidence presented that open burning

as alleged in Count II was done in accordance with Florida

Administrative Code Chapter 62 - 256. The Department has

established by preponderant evidence that open burning occurred

on the dates in question , cited in the N OV and in the evidence

adduced by the Department.

47 . Section 403.121(3)(e), Florida Statutes (2006),

provides that "the department shall assess a penalty of

$3,000.00 for unau thorized burning." The evidence does not show

that the Respondent ignited the f acility or started the fire,

but he was responsible for operating the f acility in accordance

with the Department's rules . The burning occurred while that

responsibility attach ed to him as the holder of the permit and

operator of the f acility. Thus , it has been established by

preponderant evidence that he "allowed" the unauthorized burning

at the facility.

48 . The evidence also established, however, that although

he was slo w to take action and did so only after prompting by

the Department's inspector , that the Respondent appears to have

made substantial efforts in extinguishing the fire. He

u ltimately haul ed several hundred loads of dirt to deposit on

the f acility to smothe r the fire. This, ironically, caused the

triggering of his liability to actually construct the planned

stormwater management system because the deposition of the dirt

on the site raised the elevation above the surrounding land

surface , such that stormwate r was able to migrate off the site

because the pit became a hill. There was no evidence to show

how the fire actually started, nor w as there any evidence which

showed that the Respondent ignited the fire . There was no

direct evidence to show that the fir e resulted from

circumstances either within or beyond the Respondent's control.

49 . It must be inferred, however, that the circumstances

were within his control because he was the owner and operator of

the disposal site when the fire or fires occurred. T he evidence

shows that he did exercise due diligence in extinguishing the

fire, but it also shows that he was not very timely in doing so .

His efforts were strenuous , however, once he did make them .

50 . The above - referenced statute provides that the "the

department shall assess a penalty of $3,000.00 for unauthorized

burning." The above - quoted statutory provision regarding

mitigation of penalty , Section 403.121(10), Florida Statutes

(2006), allows for the administrative law judge to mitigate up

to 50 per cent of the penalty for good faith efforts to comply ,

either prior to or after discovery of the violations , and

penalty mitigation beyond 50 percent if the violation was caused

by circumstances beyond the reasonable control of the Respondent

and could not have been prevented by Respondent's due diligence.

It has not been established that the violation regarding burning

was caused by circumstances beyond the Respondent's reasonable

control , an d it has not been established that the burning could

not have bee n prevented if the Respondent had exercised due

diligence. It has, however, been established that the

Respondent made strenuous and good faith efforts to extinguish

the fire after its discovery and after it was discovered by

Department personnel. Thus, s ome mitigation is in order.

Therefore, instead of a $3,000.00 fine for this violation the

Respondent should be assessed a fine of $1,500.00.

51 . The Department has alleged in Count III of the N OV

that on December 19, 2005, the f acility was operated witho ut a

trained spotter on duty on the working face , while waste was

being disposed of. This is a violation of Florida

Administrative Code Rule 62 - 701.803(8) , and the Respondent has

candidly admitted to this allegation. This was a one - time

occurrence and ap parently the f acility is receiving no waste any

longer. Indeed, the permit for the f acility has now expired.

Moreover, it is somewhat mitigatory that the Respondent conceded

this violation, without the Petitioner being put to the cost and

effort of proof. Thus, a penalty of $500.00 for failure to have

a trained spotter on duty at the working face of the waste

disposal f acility on that one occasion is a sse ssed .

52 . Section 403.141(1), Florida Statutes, allows the

Department to recover the "reasonable cost s and expenses of the

state" in investigating "damage caused to the air, waters, or

property . . . of the state." Here the Department has incurred

such expenses . Given the totality of circumstances, including

mitigatory ones found and concluded above, it is determined that

expenses in the amount $1,000.00 are reasonable and appropriate

under the circumstances established by preponderant evidence in

this case.

H aving considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

ORDERED: That the Respondent shall comply forthwith w ith

all above - referenced rules and statutes enforced by the

Department regarding solid waste mana gement and stormwater

management. The Respondent shall correct and re - dress all

violations in the time periods required below and comply with

all applicable rules in Florida Administrative Code Chapters 62 -

701 and 62 - 25.

The Respondent shall construct the stormwater management

system within 30 days of the effective date of this Final Order

in accordance with the documentation already submitted with the

"Notice of Intent to use a General Permit for Land Clearing

Debris Disposal Facility."

The Respondent sha ll not receive any waste at the subject

f acility until a final determination has been made by the

Department regarding the Closure Permit Application of the

Respondent with regard to the relevant rules and statutes of the

Department concerning closure. If waste is ultimately to be

received at the f acility, as for instance the f acility is not

closed for any reason, no waste shall be received until spotters

have been properly trained and hired. Spotters, if ultimately

necessary , shall be trained within 30 d ays after a Final Order

by the Department determining that the solid waster disposal

permit is re - newed and that the f acility may operate.

The Respondent shall within 30 days of the date of this

Final Order provide to the Department a time line or schedule

showing its closure plan for the f acility (including its efforts

with Escambia County to meet the closure time table and

deadlines ) . Closure shall be in accordance with Florida

Administrative Code Chapter 62 - 701.803(10) and subject to F inal

O rder approva l by the Department. Within 30 days of the

effective date of this Final Order the Respondent shall pay the

Department $4,000.00 for the administrative penalties assessed

above. Payment shall be made by cashier's check or money order

payable to the "State of Florida, Department of Environmental

Protection" and shall "note the case number and address."

In addition to the administrative penalties, within 30 days

of the effective date of this Final Order, the Respondent shall

pay $1,000.00 to the Department f or costs and expenses. Payment

shall be made by cashier's check or money order payable to the

"State of Florida, Department of Environmental Protection" and

shall "note the case number and address."

The Respondent shall remain liable to the Department for

any damages resulting from the violations alleged herein and for

the correction, control, and abatement of any pollution

emanating from the Respondent's f acility.

DONE AND ORDERED this 20th day of April , 200 7 , in

Tallahassee, Leon County, Florida .

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 20th day of April , 200 7 .

C OPIES FURNISHED :

Karen Bishop, Esquire

Department of Environmental Protection

390 0 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

Jesse W. Rigby, Esquire

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

125 West Romana, Suite 800

Post Office Box 13010

Pensacola, Florida 32591 - 3010

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail S tation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JU DICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are co mmenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

t he Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.